TRI In The News

Legal Groups to Represent Kessler in Dispute With City Over Rally Location

The Virginia ACLU and Albemarle County-based Rutherford Institute are representing Unite the Right rally sponsor Jason Kessler, saying a decision by Charlottesville officials to move the demonstration to McIntire Park may violate his First Amendment rights.

Meanwhile, officials reiterated their belief that the Aug. 7 decision to move the rally from Emancipation Park is constitutional and is not based on the content of the pro-white nationalist gathering.

The Rutherford Institute and ACLU Foundation of Virginia on Wednesday traded letters with City Attorney S. Craig Brown regarding Kessler’s proposed rally and the reasons why the city approved the rally permit only for the larger McIntire Park.

The permit was originally for Emancipation Park, the site of a controversial statue of Confederate Gen. Robert E. Lee.

“[The ACLU] sent a letter to the city in response to their letter stating that we are now legally representing Mr. Kessler,” Whitehead said. “The First Amendment requires there be a compelling interest to restrict speech and that has to be a safety issue. The people who have the permit have been shown to be peaceful so far, so there is no compelling interest that has been shown.”

The civil rights organizations wrote a letter Tuesday to Charlottesville’s city manager and city councilors demanding that the city give Kessler permission to hold his rally in Emancipation Park as originally planned.

Brown responded with a letter restating the city’s position that the decision to move the demonstration was not made on the content of the speech or the number of expected protesters and counter-protesters.

“I will take this opportunity to respond to your statements that any actions by the city that are motivated by opposition to the content of Mr. Kessler’s message, or by the presence of counter-demonstrators at his rally, would be constitutionally suspect. We agree,” Brown wrote. “In this case, however, the city manager based his decision on substantial interests that are totally unrelated to whatever message that Mr. Kessler and his associates will be delivering.”

Brown did not specify what interests led the city to change the rally’s venue, but he noted that the city allowed a July Ku Klux Klan rally, with a similar message and counter-protesters, to occur at Justice Park.

“[The city] and its employees made significant sacrifices to ensure that the Loyal White Knights of the Ku Klux Klan could hold a rally, albeit a much smaller one than planned for Unite the Right, at a downtown park despite substantial opposition from counter-demonstrators,” Brown wrote.

 “While your letter makes a number of assertions that we would expect from [Kessler], you do not indicate whether either of you are or are not representing him,” Brown wrote. “Please let me know at your earliest opportunity whether you are, in fact, representing Mr. Kessler so that I will be able to fulfill my professional responsibilities pursuant to Rule 4.2 of the Virginia Rules of Professional Conduct.”

The rule restricts with whom lawyers may discuss legal matters.

Brown asked that the civil rights organizations contact him rather the city councilors, city manager or mayor regarding the rally.

In response to Brown, Claire Guthrie Gastañaga, the ACLU’s executive director, confirmed that Kessler is a client. She said when the groups wrote the Tuesday letter they were simply rights organizations concerned with Kessler’s First Amendment rights.

“Since that time, and after we wrote to the council, Mr. Kessler has become a client of the ACLU Foundation of Virginia and Mr. Whitehead and his associate Doug McKusick have agreed to serve as co-counsel in the representation,” Gastañaga wrote.

The city’s Aug. 7 decision came after officials worried that multiple planned protests and thousands of protesters vehemently opposed to each other crammed into a four-block area could prove a safety issue.

Saturday’s rally, scheduled for noon to 5 p.m., is expected to be attended by members of several groups in the alt-right movement and pro-white activists from across the country.

Local social justice activists have sent out calls on social media for others to join them in counter-protesting. Officials have declined to release a crowd estimate, but figures bandied about during the past week range from 2,000 to 8,000.

The ACLU and Rutherford Institute have often represented groups that are outside of the mainstream in defense of their First Amendment rights.

One of the best-known efforts came in 1978 when the ACLU defended a neo-Nazi group’s effort to march in the Chicago suburb of Skokie, Illinois, where many Holocaust survivors lived.

The ACLU’s defense of the Nazi group was based on the same arguments it used during the Civil Rights era to combat Southern cities trying to shut down civil rights marches due to potential violence and disruption.

In 2006, the state ACLU and Rutherford Institute joined forces to fight a Virginia law that prevented prisoners from using the state Freedom of Information Act to obtain public documents. In 2008, they fought efforts by corrections officials across the state to censor religious materials sent to inmates.

“The First Amendment is there to protect the minority from the majority and often times the people who go out and use their free speech rights are irritating,” Whitehead said. “I’ve defended a lot of people I found reprehensible and irritating. If you don’t defend the reprehensible and irritating, you slowly lose freedom of speech for everyone in the minority.”

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